Hate crime

The Association of Chief Police Officers distinguishes between a hate incident and a hate crime. A hate incident is:

“Any incident, which may or may not constitute a criminal offence, which is perceived by the victim or any other person, as being motivated by prejudice or hate.”

Whilst a hate crime is defined specifically as:

“Any hate incident, which constitutes a criminal offence, perceived by the victim or any other person, as being motivated by prejudice or hate.”

ACPO defines a homophobic hate incident as:

“Any incident which is perceived to be homophobic by the victim or any other person.”

This definition is similar to the definition of other forms of hate incident such as race hate incidents and religious hate incidents. Under these definitions a person does not have to be lesbian, gay or bisexual to be the victim of a homophobic hate incident, nor does the victim of a hate incident have to view it as homophobic for it to be considered a homophobic hate incident by the police.

Domestic violence can be considered a hate crime and some police forces have joint domestic violence and hate crime units.

The law on hate crime

Section 146 of the Criminal Justice Act 2003 came into effect in April 2005, empowering courts to impose tougher sentences for offences motivated or aggravated by the victim's sexual orientation in England and Wales.

However, in the eyes of the law different types of hate crime are viewed differently. For example, perpetrators of racially and religiously motivated hate crimes can be charged by the police with specific offences such as racially or religiously aggravated harassment or assault.

Perpetrators of homophobic hate crimes meanwhile cannot be charged with a specific offence of homophobically motivated harassment for example. Instead perpetrators of homophobic hate crimes would be charged with existing offences, such as assault, and the homophobic motivation would be taken into account during sentencing.

If an offence is believed to have been motivated by hostility or prejudice based on sexual orientation (actual or perceived) the judge is required to:

Treat this as an aggravating factor

State in open court any extra elements of the sentence that they are giving for the aggravation.

The Criminal Justice Act 2003 does not specify the amount by which sentences should be increased where disability or sexual orientation are aggravating factors. This will be specified in further secondary legislation.